It’s been years, but the city’s action to layoff its crossing guards in the winter of 2007, thereby ending their health care and pensions for an estimated savings of $60,000 and rehiring them on a per diem basis, has been upheld on the basis, of all things, by the state’s Open Meetings Law.

In a ruling filed March 12, Superior Court Justice Jeffery Lanphear found that the Rhode Island State Labor Relations Board violated the law on Aug. 8, 2008, when it broke a 3-to-3 deadlock by calling member Joseph Mulvey. Mulvey concurred with the Rhode Island Laborers’ District Council, Local 1033 that the city’s action constituted an unfair labor practice.

The city’s action came after the administration and the union reached an agreement. The contract, which was set to expire in June 2006, was extended to June 30, 2010. That agreement went to the City Council for ratification and no further, however. The union claimed it repeatedly sought to return to the bargaining table without success. And the administration believed it was at an impasse. On Dec. 28, 2007, the city announced its intention to permanently replace the crossing guards, yet gave the existing guards the opportunity to apply for the per diem posts, which most of them did.

It was then that the union brought its complaint to the labor board.

At the hearing, the six members of the board present split on a motion to dismiss the charge. That left the board in a dead heat with three votes in favor and three opposed. The board then considered whether to uphold the union’s charge and, again, the vote was three to three.

According to court documents, in order to break the tie, the staff reached Mulvey, who did not participate in the meeting, for his vote. He favored upholding the charge.

On the basis of that action, the city argued that the board had violated the Open Meetings Law and that Mulvey’s vote should be deemed null and void.

In his ruling, Judge Lanphear found that under the law, electronic communication should be permitted only to schedule a meeting. Further, he found that electronic or telephone communications are permissible in situations where a member has a disability or is incapable of attending a meeting in person. Yet, Judge Lanphear found no evidence that Mulvey met the disabled provision; that he had not requested a waiver allowing him to participate by electronic communication and that even if granted a waiver, there was no evidence that Mulvey participated in the meeting.

“The tie break resulted from a clear violation of the Open Meetings Act and therefore the Board acted improperly by rendering a decision based on Mr. Mulvey’s vote,” Judge Lanphear ruled.

Assistant City Solicitor Diana Pearson, who represented the city, said the ruling is the first in her practice where the labor board’s action was reversed on the basis of a technicality.

The judge found there was an opportunity for a full hearing after Mulvey’s vote, as there was a complete record. But it didn’t come before the board again at that time.

“A remand does not further the interests of justice,” writes Judge Lanphear, “it merely delays and offers a second bite at a very aged apple. This second hearing and second vote is unnecessary and inherently unfair.”

This brings up an interesting point. The City Council considers a tied vote to be a vote in favor of a bill. That practice needs to end. Is there a city council rep out there willing to introduce that legislation?